Marks not Registrable as Trademarks in India
Marks not registerable as a trade mark in India– The trade marks which are not registerable in India are those which lack distinctiveness, and which are likely to cause deception or confusion in the mind of the public/ consumer.
Besides the above, other marks which are not registerable as trade marks in India are as follow:
- Trade marks that are likely to hurt religious sentiments of any community;
- Trade marks that comprises any scandalous or obscene matter;
- Trade marks the use of which is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950, e.g. the Red Cross, the National Emblem, Republic etc.
- Trade marks for the shape of goods which is purely functional or necessary to obtain technical result or which gives substantial value to the goods.
- Marks which are prohibited under the International non-proprietary names
What type of trademark cannot be registered or protected in India?
As per section 9 (2) and 9 (3) of the Trade Marks Act, 1999 in India:
(2) A mark shall not be registered as a trade mark if —-
- it is of such nature as to deceive the public or cause confusion:
- it contains or comprises of any matter likely to hurt the religious susceptibilities of any class or section of the citizens of India;
- it comprises or contains scandalous or obscene matter;
- its use is prohibited under the Emblems and Names (Prevention of Improper Use) Act, 1950.
(3) A mark shall not be registered as a trade mark if it consists exclusively of
- the shape of goods which results from the nature of the goods themselves; or
- the shape of goods which is necessary to obtain a technical result; or
- the shape which gives substantial value to the goods
Ravikanth Shinde v Managing Director, Gujarat Heavy Chemicals Ltd. and Ors., 2003(4)ALD400
The Respondents in this case were manufacturing ‘kitchen salt’ under the trademark Dandi with the pictorial representation in the background which creates an impression of Mahatama Gandhi. The Andhra Pradesh High Court directed the authorities concerned under the Emblems and Names (Prevention of Improper Use) Act, 1950, to take steps in accordance with the Act to ensure that Mahatma Gandhi’s picture or the name Dandi is not used for any commercial purpose.
Lal Babu Priyadarshi vs. Amritpal Singh, Civil Appeal No. 2138 Of 2006
In this case the Appellant applied for registration of the word “RAMAYAN” as a trade mark. The Court found that the photographs of Lord Rama, Sita and Lakshman were also shown in the label which is a clear indication that the Appellant is taking advantage of the Gods and Goddesses which was otherwise not permitted. The Court held that if any other word is added as suffix or prefix to the work “RAMAYAN” and the alphabets/design/length of the words is same as of the word “RAMAYAN”, then the word “RAMAYAN” may lose its significance as a religious book and it may be considered for registration as a trademark. Hence, no person can claim the name of a holy or religious book as a trademark for the goods or services marketed by him.
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